06-001552F Action Instant Concrete, Llc vs. Paul And Barbara Corbiey Status: Closed DOAH Final Order on Monday, August 14, 2006.

Summary: Permittee proved that the unsuccessful challenger made claims unsupported by fact or law but failed to serve the motion before filing. There is no fees award.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ACTION INSTANT CONCRETE, LLC , )

)

Petitioner, )

)

vs. ) Case No. 06 - 1552 F

)

PAUL AND BARBARA CORBIEY, )

)

Respondent s . )

)

FINAL ORDER

On July 11, 2006 , a telephonic final administrative hearing

wa s held in this case before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert E. Seymour, Esquire

Savage Krim Law Firm

121 Northwest Third Street

Ocala, Florida 34475 - 6640

For Respondent s : Robert W. Bauer, Esquire

Clayton - Johnston, P. A.

18 Northwest 33rd Court

Gainesville, Florida 32607 - 2553

For Department of Environmental Protection: 1

Stan M. Warden, Esquire

Department of Environmental Protection

The Douglas B uilding, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this case is whether a reasonable attorney 's

fee should be assessed against Respon dent s , Paul and Barbara

Corbiey , and their attorneys, and awarded to Petitioner, Action

Instant Concrete, LLC (AIC), under Section 57.105, Florida

Statutes, 2 after the Corbieys unsuccessfully challenged AIC's use

the Concrete Batching Plant Air General Per mit promulgated by

the Department of Environmental Protection (DEP) in Florida

Administ rative Code Rule 62 - 210.300(4)(a )2. 3

PRELIMINARY STATEMENT

On April 2 7 , 2006 , DEP entered a Final Order approving

AIC's use of the Concrete Batching Plant Air General Permit

under Rule 62 - 210.300(4)(a)2. The next day, AIC filed with DOAH

a Motion for Award of Attorney's Fees under Section 57.105,

Florida Statutes ( Motion ) . The Motion appears intended to have

been filed in DOAH Case No. 05 - 2891, which was the case num ber

assigned to the Corbieys ' unsuccessful challenge, but DOAH

assigned a new DOAH Case number, 06 - 1552 F.

A telephonic pre - hearing conference was held on May 18 ,

2006, at which the parties agreed to have entitlement to

attorney's fees determined on oral argument and the evid entiary

record from DOAH Case 05 - 2891 , and to have the amounts

determined only if there was entitlement. A telephonic final

hearing for the oral argument was scheduled for July 11 , 2006.

AIC was required to present the evide ntiary re cord from DOAH

Case 05 - 2891 , which had been transmitted to DEP , for use in this

case. However, the evidentiary record from DOAH Case 05 - 2891

was not presented for use in this case.

During the final hearing, oral argument was presented,

including an argu ment by the Corbieys that relief should be

denied because of AIC's failure to present the evidentiary

record from DOAH Case 05 - 2891. After the final hearing, the

parties were given until July 21, 2006, to file proposed orders.

The timely - filed post - heari ng submissions have been considered

in the preparation of this Final Order.

FINDINGS OF FACT

No Service Without Filing

1 . AIC made no motion or request for attorney's fees under

Section 57.105, Florida Statutes, prior to the filing of

proposed recommen ded orders (PROs) in DOAH Case 05 - 2891.

2 . The joint PRO filed by DEP and AIC in DOAH Case 05 - 2891

proposed a reservation of jurisdiction to enter an award of

costs and attorney fees to DEP and AIC pursuant to Section

57.105(1) and (5), Florida Statutes . The Recommended Order in

DOAH Case 05 - 2891 granted the request and retained jurisdiction

to consider a motion for costs and attorney fees under Section

57.105, Florida Statutes, if filed within 30 days after issuance

of the Final O rder.

3 . AIC did no t serve a motion seeking sanctions under

Section 57.105, Florida Statutes, without filing it, prior to

either its PRO in Case 05 - 2891 or its Motion for Award of

Attorney's Fees , which was filed within 30 days of the Final

Order in Case 05 - 2891 and initiate d this C ase 06 - 1552F .

Failure to Present Evidentiary Record

4 . Under a pre - hearing Order entered in this case, AIC was

required to present the evidentiary record from DOAH Case 05 -

2891, which had been transmitted to DEP, f or use in this case.

AIC faile d to present the evidentiary record. But no findings

made in this Final Order require the evidentiary record ( i.e. ,

the exhibits) from Case 05 - 2891, and AIC was not required to

present a transcript of the final hearing in that case since the

hearing had n ot been transcribed .

Unsupported Claims

5 . AIC proved that some claims raised by the Corbieys in

DOAH Case 05 - 2891 were not supported by the material facts

necessary to establish the claims. The Corbieys had and

presented no evidence to prove that visu al emissions (VE) in

excess of five percent opacity occurred during cement loading of

the silo, which is the demonstration clearly established by Rule

62 - 296.414(1) for determining compliance of stack emissions.

Their entire case on that issue was based o n two claims:

questioning the veracity of the VE Observations Report,

primarily by speculating that the certified technician who

performed the test may have fabricated the observations, either

with or without his employer's knowledge; and questioning the

consistent and reasonable testimony of all the experts that

valid, authorized VE observations could not be performed using

Petitioners' videotapes. The first claim was speculation and

was rejected as unfounded; and, besides having no evidence to

counter t he expert testimony on the inability to use videotapes

for the stack emission demonstration, the videotape presented in

evidence by the Corbieys did not even show loading of the silo.

As a result, Petitioners presented no evidence that VE in excess

of fiv e percent opacity occurred during cement loading of the

silo, or that AIC's stack emission demonstration was invalid.

6 . AIC proved that some claims raised by the Corbieys in

Case 05 - 2891 -- s pecifically, claims relating to zoning, the

location and hours of operation of AIC's facility, local

construction permitting and licensing, roadway debris, diesel

truck emissions, noise, and bright lights on trucks and on a

billboard on the property -- were not supported by the application

of the n - existing law to the ma terial facts necessary to

establish the claims, and were not presented as a good faith

argument for the extension, modification, or reversal of

existing law or the establishment of new law, as it applied to

the material facts, with a reasonable expectation of success

were stricken as irrelevant. The o ther claims made by the

Corbieys in DOAH Case 05 - 2891 either were supported by the

application of the n - existing law to the material facts necessary

to establish the claims , or were presented as a good faith

ar gument for the extension, modification, or reversal of

existing law or the establishment of new law, as it applied to

the material facts, with a reasonable expectation of success.

CONCLUSIONS OF LAW

7 . Section 57.105, Florida Statutes, provides in pert inent

part:

(1) Upon the court's initiative or motion

of any party, the court shall award a

reasonable attorney's fee to be paid to the

prevailing party in equal amounts by the

losing party and the losing party's attorney

on any claim or defense at any time during a

civil proceeding or action in which the

court finds that the losing party or the

losing party's attorney knew or should have

known that a claim or defense when initially

presented to the court or at any time before

trial:

(a) Was not suppor ted by the material facts

necessary to establish the claim or defense;

or

(b) Would not be supported by the

application of then - existing law to those

material facts.

However, the losing party's attorney is not

personally responsible if he or she has

acte d in good faith, based on the

representations of his or her client as to

the existence of those material facts. If

the court awards attorney's fees to a

claimant pursuant to this subsection, the

court shall also award prejudgment interest.

(2) Paragra ph (1)(b) does not apply if the

court determines that the claim or defense

was initially presented to the court as a

good faith argument for the extension,

modification, or reversal of existing law or

the establishment of new law, as it applied

to the mate rial facts, with a reasonable

expectation of success.

(3) At any time in any civil proceeding or

action in which the moving party proves by a

preponderance of the evidence that any

action taken by the opposing party,

including, but not limited to, the fi ling of

any pleading or part thereof, the assertion

of or response to any discovery demand, the

assertion of any claim or defense, or the

response to any request by any other party,

was taken primarily for the purpose of

unreasonable delay, the court shall award

damages to the moving party for its

reasonable expenses incurred in obtaining

the order, which may include attorney's

fees, and other loss resulting from the

improper delay.

(4) A motion by a party seeking sanctions

under this section must be serv ed but may

not be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim,

defense, contention, allegation, or denial

is not withdrawn or appropriately corrected.

(5) In administrative proceedi ngs under

chapter 120, an administrative law judge

shall award a reasonable attorney's fee and

damages to be paid to the prevailing party

in equal amounts by the losing party and a

losing party's attorney or qualified

representative in the same manner and upon

the same basis as provided in subsections

(1) - (4). Such award shall be a final order

subject to judicial review pursuant to s.

120.68. If the losing party is an agency as

defined in s. 120.52(1), the award to the

prevailing party shall be against an d paid

by the agency. A voluntary dismissal by a

nonprevailing party does not divest the

administrative law judge of jurisdiction to

make the award described in this subsection.

(6) The provisions of this section are

supplemental to other sanctions or remedies

available under law or under court rules.

AIC had the burden to prove its entitlement to an award of

attorney's fees under the statute.

Unsupported Claims

8 . The standards set forth in Subsection (1), and

incorporated by reference in Subsecti on (5), were the result of

an amendment to Section 57.105, Florida Statutes, in 1999. See

§ 4, Ch. 99 - 225, Laws of Florida. Prior to that amendment, the

statute provided for the award of attorney's fees when "there

was a complete absence of a justiciable issue of either law or

fact raised by the complaint or defense of the losing party."

9 . In the case of Wendy's v. Vandergriff , 865 So. 2d 520,

523 (Fla. 1st DCA 2003), the court discussed the legislative

changes to Section 57.105 , Florida Statutes :

[T]his statute was amended in 1999 as

part of the 1999 Tort Reform Act in an

effort to reduce frivolous litigation and

thereby to decrease the cost imposed on the

civil justice system by broadening the

remedies that were previous ly available. See

Ch. 99 - 22 5, § 4, Laws of Florida. Unlike

its predecessor, the 1999 version of the

statute no longer requires a party to show a

complete absence of a justiciable issue of

fact or law, but instead allows recovery of

fees for any claims or defenses that are

unsupport ed. [Citations omitted] However,

this Court cautioned that section 57.105

must be applied carefully to ensure that it

serves the purpose for which it was

intended, which was to deter frivolous

pleadings. [Citations omitted]

In determining whether a party is

entitled to statutory attorney's fees under

section 57.105, Florida Statutes,

frivolousness is determined when the claim

or defense was initially filed; if the claim

or defense is not initially frivolous, the

court must then determine whether the claim

or defense became frivolous after the suit

was filed. [Citation omitted] In so doing,

the court determines if the party or its

counsel knew or should have known that the

claim or defense asserted was not supported

by the facts or an application of existing

law. [Citation omitted] An award of fees

is not always appropriate under section

57.105, even when the party seeking fees was

successful in obtaining the dismissal of the

action or summary judgment in an action.

[Citation omitted]

The court in Wendy's recognized that the new standard is

difficult to define and must be applied on a case - by - case basis:

While the revised statute incorporates the

'not supported by the material facts or

would not be supported by application of

then - existing law to t hose material facts'

standard instead of the 'frivolous' standard

of the earlier statute, an all encompassing

definition of the new standard defies us. It

is clear that the bar for imposition of

sanctions has been lowered, but just how far

it has been lowe red is an open question

requiring a case by case analysis.

Id. at 52 ( citing Mullins v. Kennelly , 847 So. 2d at 1155, n.4.

(Fla. 5th DCA 2003) ) .

10 . More recently, the First District Court of Appeal

further described the legislative change:

The 1999 v ersion lowered the bar a party

must overcome before becoming entitled to

attorney's fees pursuant to section 57.105,

Florida Statutes [Citations omitted.]

. . . . Significantly, the 1999 version of

57.105 "applies to any claim or defense, and

does not re quire that the entire action be

frivolous."

Albritton v. Ferrera , 913 So. 2d 5, 8 (Fla. 1st DCA 2005),

quoting Mullins v. Kennelly , supra . The Florida Supreme Court

has noted that the 1999 amendments to Section 57.105, Florida

Statutes, "greatly expand t he statute's potential use." Boca

Burger, Inc. v. Richard Forum , 912 So. 2d 561, 570 (Fla. 2005).

11 . The phrase "supported by the material facts" found in

Section 57.105(1)(a), Florida Statutes, was defined by the court

in Albritton to mean that the "party possesses admissible

evidence sufficient to establish the fact if accepted by the

finder of fact." Albritton , 913 So. 2d 5, at 7, n.1.

12 . In this case, as found, AIC proved that the Corbieys

and their attorneys made both: claims they knew or sho uld have

known were not supported by the material facts necessary to

establish the claim s ; and claims they knew or should have known

were not supported by the application of the n - existing law to

the material facts necessary to establish the claims, and wer e

not presented as a good faith argument for the extension,

modification, or reversal of existing law or the establishment

of new law, as it applied to the material facts, with a

reasonable expectation of success. See Findings 5 - 6 , supra .

Statutory Prer equisite

13 . However, AIC failed to meet the prerequisite of

Subsection (4) of the statute , s ee Finding 3 , supra . , which is a

mandatory prerequisite for an award of fees under Section

57.105(5), Florida Statutes. See Dept. of Transportation v.

Megan Sout h, Inc. , Case No. 03 - 4258F, 2003 Fla. Div. Adm. Hear.

LEXIS 1126 (DOAH Dec. 17, 2003). The proposal in the joint PRO

filed in DOAH Case 05 - 2891 of a reservation of jurisdiction to

enter an award of costs and attorney fees to DEP and AIC

pursuant to Sectio n 57.105(1) and (5), Florida Statutes , did not

constitute service of a motion seeking sanctions under the

statute in compliance with Subsection (4) .

14 . AIC argued that the prerequisite did not apply because

Subsection (1) provides: " Upon the court's i nitiative or motion

of any party, the court shall award , [attorney's fees under the

statute]. (AIC's emphasis added.) But fees are not being

considered in this case on the undersigned's initiative.

Rather, they are being considered upon the request of A IC.

Contrast Morton v. Heathcock , 913 So. 2d 662, 669 (Fla. 3d DCA

2005).

15 . For these reasons, attorney's fees cannot be awarded

in this case , even though the Corbieys and their attorneys made

claims they knew or should have known were not supporte d by the

material facts necessary to establish the claim, or were not

supported by the application of the - exist ing law to the material

facts necessary to establish the claims . Had AIC served its

Motion before filing it, and the Corbieys had not withdrawn or

appropriately corrected those claims, AIC would have been

entitled to a reasonable attorney's fee for defending against

those claims.

DISPOSITION

Based on the foregoing Findings o f Fact and Conclusions of

Law, the Motion for Award of Attorney's Fees under Section

57.105, Florida Statutes is denied .

DONE AND ORDERED this 14th day of August , 2006 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Heari ngs

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August , 2006 .

ENDNOTES

1 / D EP did not file a motion for sanctions and did not actively

participate in this case 06 - 1552F, but did appear during the

final hearing and supported AIC's positions.

2 / References to these statutes are to the 2005 codification of

the Florida Statutes.

3 / Except as otherwise noted, Rule references are to the current

codification of the Florida Administrative Code, as reflected in

the Joint Exhibits in the unsuccessful challenge, DOAH Case 05 -

2891 .

COPIES FURNISHED :

Robert W. Bauer

Clayton - Johnston, P. A.

18 Northwest 33rd Court

Gainesville, Florida 32607

Robert E. Seymour

Savage Krim Law Firm

121 Northwest Third Street

Ocala, Florida 34475

Stan M. Warden, Esquire

Department of Environmenta l Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 1 20.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, acco mpanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the orde r to

be reviewed.